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Oregon Files Motion Supporting Spill Injunction Request by Barry Espenson Columbia Basin Bulletin - July 23, 2004

The state of Oregon and its governor and four Columbia River treaty tribes filed legal papers July 17 in support of fishing and conservation groups' efforts to stop the planned August elimination of spill as a route of passage for juvenile salmon and steelhead at federal hydroelectric projects.

Oregon Gov. Ted Kulongoski's stance immediately drew fire from utility and business interests who say the spill plan makes both biological and economic common sense.

The state of Oregon filed a motion in support of the request for an injunction to stop implementation of the reduced summer spill plan. Likewise the Columbia River Inter-Tribal Fish Commission's member tribes -- the Nez Perce, Warm Springs, Umatilla and Yakama -- filed briefs and scientific declarations supporting the injunction.

Oregon's amicus brief said that NOAA erred "both as a matter of law and as a matter of fact" when it accepted an agreement between the Bonneville Power Administration and Idaho Power as a legitimate offset for spill effects. The agreement calls for the release of 100,000 acre feet of water in July from Idaho Power's Brownlee Dam to provide stouter flows for outmigrants. The brief signed by Oregon Attorney General Hardy Myers says those flows "already are contemplated and counted (at least once) in the 2000 Biological Opinion."

Such double-counting does not represent the additional survival benefits portrayed in the spill reduction plan, the brief says.

"Because the action agencies fail to provide any legitimate offset for the proposed spill curtailment, NOAA's finding -- that the action agencies' proposal has similar biological benefits as the spill contemplated by the Biological Opinion -- is arbitrary and capricious as a matter of law," the brief says. Oregon brief also says implementing the plan would violate the Corps' obligation to take the necessary action to avoid jeopardy.

The Oregon brief suggests two courses of action for the judge. The first is an injunction halting the spill reduction plan. If the "court is disinclined", the state suggests the court enjoin the plan's implementation until BPA promises to spend any extra revenues on salmon recovery measures.

"The revenues anticipated from the spill curtailment could, for example, dramatically accelerate testing and installation of removable spillway weirs, providing a lasting structural improvement that would benefit generations of salmon and steelhead," the brief says. The new technology as been tested successfully at Lower Granite, allows more fish to be spilled for any given volume of water. An RSW is scheduled for installation at Ice Harbor this winter.

"The federal spill reduction plan, while well-intentioned, does not help us resolve this issue in the long-term," said Kulongoski. "There's a better solution than simply shutting down the spillways, and that is to install newer, more effective spillway systems."

"We need to implement a long-term solution that can achieve the dual goals of power generation and fish recovery," Kulongoski said. "Simply shutting off water spills is not the best way to meet all the competing economic needs." The spillway closures are expected to result in the destruction of approximately 500,000 migrating juvenile salmon, according to state and tribal fish biologists. This translates to as many as 20,000 fewer adult salmon returning to the Columbia River annually within four to five years, according to a press release from the governor's office. The alternate downstream passage routes are either aboard transportation barges, through mechanical bypass devices or through the turbines. Spill is generally regarded as the most benign route of passage.

Power user groups responded with anger to Kulongoski's stance.

"We are very frustrated", said Shauna McReynolds, spokeswoman for the Coalition for Smart Salmon Recovery. "This is an opportunity for more fish and for rate relief. We don't understand how the governor cannot support this proposal."

The coalition was formed earlier this year with the aim of encouraging more cost-effective implementation of salmon recovery actions. It membership is made up of organizations the represent agriculture employers, utility customers, and businesses. Among those members are the Public Power Council -- a defendant intervenor in the case, and Pacific Northwest Generating Cooperative, which is participating in the lawsuit as amicus. The federal agencies, defendant intervenors and amici filed opposition papers Thursdsay regarding the request for an injunction.

BPA had intimated that the increased revenues could mean it might be able to reduce wholesale power rates by up to 2 percent. And NOAA, BPA, the Corps and the business coalition insist that plan provides "the same or greater biological benefits" as current hydro operations.

"The governor's decision to join the lawsuit is a real step backward for the Oregon economy and for common sense salmon recovery," McReynolds said.

"This decision is just flat wrong," said Pat Reiten, president and CEO of PNGC Power, a cooperative of rural electric utility cooperatives located throughout the Northwest, "The governor has chosen politics over an opportunity to save both dollars and fish."

The fishing and conservation groups lauded the governor for his stance.

"Gov. Kulongoski has served notice that the universal desire for more affordable energy must be met through responsible technology. He has stepped into the leadership role with a balanced commitment to healthy and sustainable growth in all communities. We hope that neighboring Northwest governors will follow his principled example." said Bruce Buckmaster, Salmon For All Board member. The governors of Idaho, Montana and Washington all sent letters to the federal agencies encouraging implementation of the spill reduction plan.

Buckmaster's group predicts the loss of spill passage will ultimately reduce the fall chinook return in the future, and hinder their ability to make a living. Salmon for All is a commercial fishing industry association based in the Lower Columbia River. Jobs will be lost, SFA says, to save what amounts to a dime per month on the average home power bill.

"We need to focus on a solution that's best for everyone in Oregon, and that means not accepting a short-term fix at the expense of our state's long-term health," said Kulongoski. "Sport anglers spent more than $700 million in Oregon last year, and angling is just one of the many segments of Oregon's economy that will be negatively impacted by this action. We need to ensure that BPA and the Corps consider the long-term economic harm that is likely to result from this short-term plan."

"No one has been able to guarantee that they will lower rates for consumers as a result of shutting off spills to generate and sell more power," said Kulongoski. "What is guaranteed, however, is that shutting off the spills will kill more fish."

BPA and the Corps of Engineers during the past winter and spring developed the proposal to reduce July and August spill that the agencies acknowledged would reduce survival for migrating subyearling fall chinook salmon.

The proposal includes the implementation of "offset" actions that the federal agencies calculate will improve survival enough elsewhere to counterbalance mortality resulting from the reduction in spill. The plan would reduce spill by about 35 percent from what is prescribed in NOAA Fisheries 2000 biological opinion on Federal Columbia River Power System operations.

By sending the water through the turbines instead of through spill gates, BPA estimates it improve net revenues by between $18 million to $28 million.

Last year a lawsuit was filed challenging that 2000 NOAA Fisheries BiOp, which said hydro operations jeopardized the survival of 8 of 12 salmon and steelhead stocks that are listed under the Endangered Species Act. The BiOp's "reasonable and prudent alternative" described 1999 actions that NOAA Fisheries said must be implemented to avoid jeopardy under the ESA.

The 19 fishing and conservation groups that filed the lawsuit scored a victory when in May of 2003 U.S. District Court Judge James A. Redden declared the BiOp arbitrary and capricious and ordered a remand of the document to correct the deficiencies he cited. That remand is ongoing.

Earlier this month, the groups, which are represented by Earthjustice attorneys, asked Redden to add the Corps of Engineers as a defendant in the lawsuit. On July 17 the plaintiffs followed up by filing a motion for a preliminary injunction preventing the Corps from implementing the federal spill reduction plan, saying it poses "a clear and imminent risk of serious harm to threatened Snake Rive fall chinook. The motion also asks the judge to set aside the NOAA decision to approve the plan.

The Corps operates the dams. The spill plan calls for curtailing all spill at The Dalles and Bonneville dams on the lower Columbia River in August and cuts off spill at the Lower Snake's Ice Harbor dam and John Day dam on the Columbia Aug. 26 through Aug. 31.